Same sex marriages – A theory of justice

| by Dr. Ruwantissa Abeyratne

( February 8, 2013, Montreal, Sri Lanka Guardian) On Tuesday 5 February 2013, The British House of Commons voted overwhelmingly (400 to 175) to approve a bill legalizing same sex marriage in Britain. The law, once passed by the highest court – The House of Lords – would apply to England and Wales, permitting civil marriage between same-sex couples. It would however not obligate institutions of faith including the Church of England to perform such ceremonies.

In terms of moral justification for same sex marriages, therein lies the key – equality – bringing to bear the need to treat humans as equals that in turn calls for respect for the choices humans make and for their dignity.

Arguably, one of most contentious issues in recent times, not only in England but around the globe, same sex marriages have been approved by law in many jurisdictions including The Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), South Africa (2006) Norway (2008), Sweden (2009), Argentina (2010), Portugal (2010), Iceland (2010), Brazil (2011), and Denmark (2012). Nine States in the United States have also legalized same sex marriages. During his second inauguration speech on 21 January 2013 President Obama said: “"Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal as well."

In terms of moral justification for same sex marriages, therein lies the key – equality – bringing to bear the need to treat humans as equals that in turn calls for respect for the choices humans make and for their dignity.

We live in a pluralist society where we argue about the virtue of many things – be they capitalism, free markets, socialism or laissez faire. Therefore we certainly can argue about same sex marriages and justice, and their link to a good life, and have different views. There are compelling moral and religious overtones to same sex marriage, and we cannot avoid them. However, the operative question is whether society should pass judgment as to what the proper end of marriage is as social institution. What is the teleological basis of human sexuality? Is the purpose of marriage, procreation? Should it be a matter of individual choice when it comes to choosing the gender of a partner? Should the government stay out of the business of legislating on marriage? And should they remain neutral?

The 2003 case of Goodridge v. Department of Public Health was a landmark case on same sex marriage decided by the Supreme Court of Massachusetts. The Court handed down its decision that struck down the prevailing ban against same-sex marriages. Chief Justice Margaret Marshall opined that marriage was about individual autonomy and equality before the law. It was a public celebration of obligation of membership and solidarity based on consent that resonated a certain intuitive moral force of companionship. The court implied that arguments about justice cannot be detached from the ultimate telos of the good and that persons should be treated as persons without prejudice or discrimination.

In this context, one is confronted with the question as to whether the issue of segregation, traditional beliefs and cultural values would impede the “human world” we create through understanding and respect for each other. Montesquieu argues that a truly virtuous man will come to the aid of a stranger and if we are perfectly virtuous we would not have any friends – meaning that we should not clan together when dealing with social issues that bring to bear the application of the principles of justice – which call for moral worth of the good and the end served.

Is marriage therefore (whether the partners are of the same gender or not) the exclusive and permanent commitment of the spouses? The Court in the Marshall case held that civil marriage is a secular institution, not a religious one. None of the dissenting judges mentioned God or the Bible, and none of them stated any opinion about the morality or immorality of homosexual acts. All the arguments made on both sides concerned themselves with whether the Commonwealth of Massachusetts has a legitimate and rational interest in preventing same-sex couples from marrying.

The court was of the opinion that religious and moral issues may figure prominently in the public debate on same-sex marriage, but they appear to be irrelevant under the law. Chief Justice Marshall sated: “Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. ... No religious ceremony has ever been required to validate a Massachusetts marriage.”

Lady Hale said in the 2010 Radmacher v. Granatino case (which involved a heterosexual marriage but the philosophy of the statement below curiously reflects correctly the moral basis of a same sex marriage):

"Marriage is, of course, a contract, in the sense that each party must agree to enter into it and once entered both are bound by its legal consequences. But it is also a status. This means two things. First, the parties are not entirely free to determine all its legal consequences for themselves. They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state. Nowadays there is considerable freedom and flexibility within the marital package but there is an irreducible minimum. This includes a couple's mutual duty to support one another and their children”.

One would finally be confronted with the theory of John Rawls contained in his work A Theory of Knowledge which introduced what Rawls called “the Veil of Ignorance” which offered guidance on addressing the moral justification of a certain issue. Rawls opined that an issue should be addressed as though parties to the original position know nothing about their particular beliefs, proclivities, preferences and position within the social order of society.

The veil of ignorance purportedly obviates and blocks off this knowledge, such that one does not know what burdens and benefits of social cooperation might fall to him/her once the veil is lifted. Once this knowledge is effectively blocked, parties to the original position must determine how rights could be determined and ascribed, positions could be given and resources used in their society. As Rawls put it, "...no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like". This concept is based on the fundamental premise that in addressing an issue of morality or justice, personal considerations that are morally irrelevant to the justice or injustice of principles meant to allocate the benefits of social cooperation are made unnecessary. This allows, as Professor Michael Sandel of Harvard University, a renowned philosopher and academic, says, the ability for us to move back and forth from our judgments and arguments and revise our judgments effectively.